Phillip K. Howard noted commentator on Civil Justice reform gave a TED Talk on the topic: Is the Law making us less free? While his reforms are aimed at civil justice reform, they may be more appropriate for criminal justice reform. He suggests giving Judges who feel trapped by the law the ability to use their discretion to interprete and apply the law. This rings true in the criminal law as Judges are hamstrung by mandatory minimum Jail, Probation and collateral consequence sentencing requirements to punish offenders perhaps more than they deserve. Thus they create a framework of legal gotchas as opposed to meting out justice.
We have to trust Judges to mete out justice with moral responsibility and ethically. If we don’t trust the judge then who do we trust? The Legislator who votes for a bill he or she does not even read because they don’t want to be seen as soft on crime in the next election cycle? Shouldn’t a judge be able to decide if some will get points on their drivers license or a license suspension for a speeding ticket even though they don’t fit neatly in some sentencing grid? Shouldn’t a judge be able to decide if a defendant goes to jail or does community service for a DUI in the Defendant’s back pasture as opposed to on a major freeway with kids in the car. Or even what Defendants should have a criminal record of either their arrest or conviction or both? Right now if you are arrested and finger printed – gotcha – you have a Georgia criminal arrest record. If you get a Georgia traffic ticket for a moving violation – gotcha – you have points on your license. If you get a Georgia DUI – gotcha – you get a drivers license suspension regardless of the circumstances. Shouldn’t these types of decisions be up to the Judge and not some governement agency? In the next legislative session in Georgia, why don’t we try getting rid of some laws and give some discretion back to Judges that we elect?